Liability Protection for Family Enterprise Directors & Trustees: Strategies to Attract and Retain Talent

Read in 4 minutes Meeting in the board room | Alliant Private Client

Families that have grown wealth through ownership of a business over multiple generations have experienced the necessity of utilizing complex entities for planning purposes, including trusts, partnerships and corporations.

A family office is a common example of a corporation that families establish to manage wealth from the sale of their family business, or to preserve wealth outside of their family owned company.

Today in the United States, family businesses have created significant wealth to preserve: family businesses account for 64% of American GDP and comprise 35% of Fortune 500 Companies. Approximately $10.4 trillion of net worth will be transferred by 2040, according to a recent study by KPMG.

Until recently, many families filled key governance roles associated with their trust and estate planning with trusted friends, colleagues, or advisors who were flattered to be asked and honored to serve. But many are now ready to retire and we’re witnessing a shift in who is recruited—and willing—to take over. The new candidates are often seasoned professionals with a greater understanding of key roles and their responsibilities—and also of the potential liability exposures they may face. Not surprisingly, top-caliber directors and trustees very much want to be certain they’ll be protected from any personal liability before they’ll even consider serving in such a role.

For directors, liability exposure arises from a strict fiduciary duty (a legal obligation for one party to act with the highest standard of care for another party) to family members and family operating entities. Directors have obligations and standards of care for their decisions where their exposure to legal liability is similar to that of Directors of larger corporations.

For trustees, liability exposure comes from the administration of a trust and the fiduciary duty to act solely for the benefit of the trust’s beneficiaries.

On a larger scale, families of significant wealth that form a private trust company essentially own a corporation created to provide fiduciary services to their generational family, not to serve the general public or unrelated clients. Such trust companies are overseen by professional boards under a formal corporate structure and require different but nonetheless tailored liability protection. They are also subject to oversight by a banking regulator and are established within jurisdictions such as New Hampshire, Nevada, South Dakota, Tennessee or Wyoming that may have compulsory insurance requirements. All of these factors make risk and insurance evaluations essential.

To manage this increasing variety of liabilities, we suggest a thorough review of indemnification both through contractual language and the purchase of insurance. Contractual language may help, but it is often not sufficient. The best risk management approach is to have both.

We often hear directors and trustees say, “I’m indemnified, so I don’t need to worry”. Alas, indemnification is inadequate if it is not backed with sufficient financial resources. A director or trustee relying upon his or her legal defense costs being provided through an indemnification clause may find there’s no agreement on or availability of the amount of funds available for defense costs. Outside of funding, we suggest consulting legal counsel to ensure indemnification provisions provide the maximum protection permitted by law by the corporate charter or by employment contract.

Most family enterprises buy insurance or may be required to buy it as part of establishing their private trust company. We suggest using a holistic approach to understand the complexity of the family enterprise, and its organizational structure. This approach allows us to articulate the risk profile to insurance underwriters and give us the ability to maximize liability protection for our clients. If an insurance program doesn’t incorporate different corporate structures and tailor the program to specific roles and protect the liability of the role, a potential gap in coverage will occur.

With the heft of family businesses and their contribution to America’s economy comes significant wealth creation and the necessity for insurance to fulfill the role in helping family enterprises attract top directors, officers and trustees. As boards and roles become increasingly professionalized, a careful review of liability protection is essential.

Topics Family Enterprise Risk

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Market update: why premiums and nonrenewals are rising

The insurance industry is in the midst of a correction due to a significant increase in catastrophic events such as hurricanes, wildfires, floods, and more. This has resulted in some clients facing challenges, ranging from higher rate hikes to non-renewals. Whether you have been directly affected or not, we want to educate you on the current market situation. To help you better understand what is happening, why it’s happening, and how you can mitigate its impact on your insurance program, we convened a group of senior leaders to answer frequently asked questions. However, before we go into the details, let’s take a step back and talk about insurance more broadly. Essentially, the market only functions because risks are pooled, and thus transferable. To cover one person’s home (or automobile or boat, etc.), carriers need to receive premiums from all their clients in an amount sufficient to offset their total exposure. The downside: Your rates are not just affected by your personal claim experience, but also by all those in the pool with you. Insurance can’t work if rates are only raised for people who’ve made claims. So even if you have a clean record with no claims, you could experience a renewal where your rates go up because you are in an area that overall has had large losses. The upside: While the ‘pooling’ of risk means you will be impacted by other people’s losses, it also means that in the event you have a major loss, you will likely be paid an amount that greatly supersedes the amount you’ve paid in premium over time. Say you pay an annual premium of $16,000 over the course of 20 years, then in year 21 lose a house that is insured for $4 million due to a fire, you have still come out ahead. Alright, now to the FAQs... Why is the market in this current state? Although it may feel personal, the market conditions are not a direct affront to individuals. Instead, two main factors are driving the changes. First and foremost, extreme weather events have been increasing across many parts of the country. Examples include the rising number of wildfires in the West, which have doubled in the past few decades. While California and the Gulf Coast are particularly affected, the Northeast and Midwest have also experienced their share of challenges. At the same time, major cities nationwide are also struggling with the effects of an increasingly crumbling infrastructure. Aging pipes in urban buildings have led to more costly water damage claims. For example, one of our carriers has paid nearly double this decade in water losses, and the number one reason is plumbing failures. Furthermore, the rising costs of repairs and reconstruction have compounded the challenges. The demand for skilled labor in the rebuilding process now surpasses supply, and replacing high-end appliances and amenities comes at a steep price. It’s important to note that suitable temporary living arrangements during such times are also costly. Ok, so how will this affect my premiums? Where once we considered anything more than 10% on the high side, we now regularly see jumps of 20%-25% a year. We encourage you to contact your Account Executive regarding your specific program and how your premiums may or may not be affected. Does the new reality impact me if I don't live in an at-risk area? Its possible. Keep in mind, while you may live in an area less prone to catastrophic events, that doesn’t mean you are exempt from severe losses. Hailstorms in Wyoming, tornadoes in Texas and severe winter storms along the East, have all been areas with damaging losses over the past few years. Therefore, no area is truly immune to loss. Even if one area within a region is not at risk of catastrophic loss, there may still be a raise in rates within that state. For example, premiums may go up on a townhouse in San Francisco because of wildfires in L.A. County. The reality is, the impact of these trends is nationwide. So, it is important to speak with your insurance broker as some markets are increasing their thresholds in certain areas and others are not writing any new business. Is there any relief in sight? It depends largely on science. If major weather incidents and the ensuing catastrophic losses continue or increase, carriers will then need to continue to adjust their exposure and rates accordingly. What can I do to help myself? To keep your premiums as low as possible, and your coverage intact, make your account look as appealing as possible to underwriters. That means sustaining small losses, utilizing higher deductibles and keeping your insurance available for catastrophic, worst-case events. This will also provide premium savings. 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Lastly, if you live in areas with serious weather concerns and have experienced a non-renewal or a drastic rate increase, ask your broker about secondary markets. They’re not ideal, and coverage terms may not be as broad as your existing policy, but they’re better than nothing. Anything else I should know right now? If you plan to follow our advice and only put in claims for major losses, select policies with high deductibles. You can also get breaks on premiums by complying with any safety measures prescribed by your carrier. Even if you don’t think you need a leak detector or backup generator, putting one in anyway will maximize the credits. Hey, whatever it takes! Always know we are here to guide you through this correction and any other insurance concerns as well. ...

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A guide to protecting your family office from a cyber breach

In the messy aftermath of the massive Equifax breach, which exposed the private information of nearly half of all American adults, many concerned family offices have inquired about what to do next to protect data security. And for good reason: criminals target and obtain wealthy individuals' information in order to open high-limit credit cards, borrow directly from banks or hack into the target’s email for nefarious purposes. That’s why we see an even greater need for family offices to systemically review their management of sensitive information and ensure that standard protections are in place. Because there is no one-size-fits-all fix—even with a cyber liability insurance policy in place—we believe peace of mind is best accomplished through a multi-pronged approach that incorporates education, risk mitigation and a judicious mix of coverage. Step one is to ensure that all family office staff and family members are trained to avoid clicking on so-called phishing emails (a.k.a. scams) that infect computers with malware or link to a page designed to steal private data. While this sounds simple, even the savviest fall prey. After all, phishing emails were responsible for the hacks at the Democratic National Convention and Sony Pictures, and a Gmail scam was so sophisticated that it fooled techies. Accordingly, we suggest hiring a reputable, white glove security firm to conduct a full review of both the family office staffs’ and family members’ devices and accounts, including social media networks. The best firms also provide in-depth training to any individuals who repeatedly engage with potentially harmful emails, and run educational sessions for the entire family. They’ll even make it fun for the know-it-all 8-14-year-olds, who are almost certainly not as careful as they should be. Meanwhile, family offices should update their own security processes. Regularly scheduled software reviews by an IT expert are, of course, a minimum requirement. Equally important, and sometimes overlooked, is instituting a process for the movement of cash. Currently, the best practices include creating a pre-established list of employees authorized to transfer funds or initiate payments, and implementing client identification methods. A callback confirmation provision, which is akin to the protocol typically employed by financial institutions, is one example. We’ve seen many cyber criminals use a family member’s hacked email account to send a fraudulent money wire request, and without a verification process that transaction is likely to go through. Formalizing protocol for voice and electronic transfer requests is essential, as insurance companies will require detailed explanations of these actions before issuing fidelity bonds and newer social engineering fraud coverage—both crucial. The fidelity bonds cover losses—property or financial—incurred through fraud, forgery and employee dishonesty. Social engineering fraud coverage is now considered a standard element in any private insurance policy and is specifically oriented to mass or targeted email hacking schemes. Although you might expect otherwise, these thefts are usually not covered by cyber policies. Family offices should still consider obtaining a cyber liability policy because it provides customized assistance should a hacker steal data or hold it hostage for ransom. A breach coach, usually a law or forensic accounting firm, move quickly to a) identify what happened; b) assess the impact to the server; c) restore or repair the network; and d) do what is required to make future attacks unlikely. Without such a policy, family office officials are left to find their own experts and answers, which is not easily done nor an ideal circumstance during a crisis. Unfortunately, those policies won’t protect the office, or family members, should the breach happen to a third party like Equifax. These companies generally have their own cyber policies and are prepared to notify those impacted, but these services were significantly overtaxed and thus unresponsive after the Equifax news. Because high-wealth (and especially high-profile) individuals often need to take immediate action, family offices should also consider obtaining identify theft coverage for each family member. Personal Insurance carriers offer a range of coverage as a supplement to homeowner’s insurance policies. Coverage features range from data restoration, cyber extortion, cyber bullying to crisis management and reputation restoration with a variety of coverage limits available. This specialty coverage can also include credit monitoring and credit freezing if—or more likely when—the next major breach happens. ...

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Obtaining life insurance in the age of big data

In the digital age, the drive to protect our loved ones remains as strong as ever, but the process is once again in transition. Insurance companies aren’t far off from making underwriting decisions from the computer algorithms and vast databases that have transformed our modern lives. For anyone who wants new coverage—or to ensure that their existing policies are in order—the potential impact of the new technologies is worth understanding. Here is what you can expect when obtaining life insurance in the 21st century. The process is starting to get faster Long before Silicon Valley’s algorithms and big data, insurance companies were concocting formulas to estimate life expectancy. They would deliver a price for a policy after inputting factors like age, weight, family history, medical condition and propensity to engage in risky behaviors. About five years ago, a select few insurance companies realized that their models were good enough to make some underwriting decisions without a medical exam. The firms offered speedy underwriting programs that required only an application (often online), a telephone interview, and permission for the company to gather electronic information about your health and lifestyle. These programs have become so popular today that many carriers are making them available to more customers with higher policy limits up to a $1M. In the future, parts of the process may be even quicker with talks of insurance carriers analyzing your selfie to determine whether you qualify for the best rates! You might want to hold off on that ancestry test While thus far scientists have only identified a few genes that indicate a heightened risk of certain medical conditions, it’s ultimately the information stored in our DNA that can best predict longevity. While none of the insurance companies in the United States force people to take genetic tests, the carrier can consider those results for underwriting IF they are part of your medical record. (Canada and several European countries have banned this practice, and a few states are considering similar rules.) For now, you should be careful about voluntarily submitting to DNA testing through services like 23 and Me. At the very least make sure they will destroy the sample. Or even better, wait until after you’ve bought your insurance policy before checking out whether grandpa’s tales of Viking ancestry are true. Carriers know more about your life Buying life insurance has always involved a privacy tradeoff: you allow an insurance company to ask your doctor questions and in exchange, you get to protect your family if there is an unexpected loss. Now the fine print on the insurance application also authorizes the underwriter to examine our digital personas. They are not only looking for signs of health and lifestyle risks, but they also want to double check that the information you put on your applications is accurate and complete. These are the main types of data life insurance companies peruse, and how they might impact your application: Past Insurance Applications. Every time you apply for life insurance, some of that information is sent to an MIB (Medical Information Bureau) data clearinghouse. So if you get turned down for insurance from one company, don’t think you can “forget” to mention your heart transplant when you apply to a different carrier—they will have access to other companies’ notes. Prescription Drug Records. Underwriters can typically see all the drugs you’ve taken and the doctors that prescribed them. The files don’t show what conditions the drugs were prescribed for, so this data often raises more questions than answers. Some of those questions can be quite pointed, however, especially, if the company sees you’ve been treated by doctors for conditions you left off of your application. Social Networks and the Rest of the Internet. Your insurance company knows how to use Google too. And there are a bunch of startups that scan publicly available information on social networks for evidence of risky behavior - so if you’ve posted pictures of yourself skydiving, your life insurance rates could be sky high as well. Don’t forget that behavior and lifestyle are strong indicators of life expectancy! State Motor Vehicle Records. For people under 45, car accidents are the leading cause of death, so insurers look for any record of driving while intoxicated, reckless driving, or, increasingly, distracted driving. They even look for speeding tickets! Help is near While the application process is utilizing big data and adapting to new technologies, the value of life insurance remains constant and irreplaceable. The good news is that data will not stop most applicants from obtaining a good policy. However, it can add complexity. We are available to help navigate this quickly-evolving digital landscape as it pertains to your life insurance coverage today and in the future. ...

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